The Federal Aviation Administration (FAA) was tasked in 2012 (and earlier) with safely integrating drones into the national airspace by September 30, 2015. The FAA was also tasked with releasing its Notice of Proposed Rulemaking (NPRM) for commercial use of small UAS (drones under 55 pounds) before then, but the deadline to do so has been missed several times. According to a recent Department of Transportation report, these proposed rules were to be released on January 30, 2015, but that deadline has passed and as we go to press the rules have not been forthcoming. Everyone in the industry, from manufacturers to operators to venture-capital firms are eagerly awaiting what the FAA will finally say for its proposed requirements on commercial use of small drones. This article discusses what the NPRM is, the specific issues we anticipate the NPRM will address, how the rulemaking process works (in brief), and what you can do to advocate for yourself, your business, and your industry.
WHY WILL WE HAVE THE NPRM?
It’s the law, and ideally it is democracy in action. The Federal Administrative Procedure Act provides that once Congress determines that a rule is necessary (like a national maximum highway speed, or a rule about commercial use of drones), the relevant federal agency, working with in-house experts, makes a proposed rule after working with in-house experts. The agency’s proposed rule is then published in the Federal Register as a public notice. Once the rules are published, the agency is required to allow the public to make written comments about the rule and also allow the public to participate in any hearings. The agency is then required to genuinely take into account the public’s comments on the proposed rule and to possibly make adjustments to the proposed rule, after which they release the adjusted rule as a Final Rule, which has the force and effect of law. This process, often called the notice and comment period, can last anywhere from several months to over a year. For sUAS, the FAA has stated it expects the process to take 18 months.
Here is an important point: in the ordinary case, only lobbyists hired by associations and highly interested stakeholders pay attention to this process and make their thoughts known. However, in our case with sUAS, it is extremely important that every person potentially affected by the proposed rule make their thoughts known.
That means, for example, that photographers who want to use their small drones for business and don’t want to (or cannot afford to) become full-fledged private pilots should make their case known to the agency in the comment period, specifying why, for example, it would be unreasonable to require a private pilot’s license. What we don’t want, in my opinion, is for only the lobbyists for outside interests to be heard. We have seen in the Section 333 exemption process that outsiders such as the Airline Pilots Association will put forth the effort to object to the use of small drones. Therefore, we expect the same to occur with the sUAS NPRM. If you do not want your own interests to be steamrolled over by well-heeled organizations that don’t care about you, you must make the effort to submit your own, well-thought out comments in response to the NPRM. In addition, if you can afford to, you should also consider giving an extra donation to the Academy of Model Aeronautics’ Government Relations. They are expected to put considerable efforts into lobbying for the rights of operators of sUAS.
SO IF I FOLLOW THE NPRM AM I FOLLOWING THE LAW?
No. While the NPRM was created by the FAA and reviewed by the White House, they are not yet the law. Only after the notice and comment period will the FAA publish final rules that will actually be binding. The NPRM itself will not change the current status quo. Commercial operations will still be prohibited, which means to fly sUAS commercially you must apply for and receive a Section 333 Exemption Grant until the final rules are in place.
WHAT DO WE EXPECT TO SEE IN THE NPRM?
One of the major concerns in the industry is what certification the NPRM will require of commercial sUAS operators and visual observers. From what we’ve seen in the Section 333 Exemption Grants so far, the FAA may require commercial sUAS operators to hold certification that would also allow the operator to fly a manned aircraft (a private pilot’s license). Alternatively, the NPRM may include a way for an individual to become a FAA-certified sUAS operator without going through the extensive (and expensive!) training to fly manned aircraft.
We also may see proposed regulations regarding privacy and limiting the locations where sUAS aircraft can operate.
WHAT TIME FRAME ARE WE LOOKING AT?
When the FAA publishes the final rules, they will be submitted to Congress and the U.S. Government Accountability Office for a review period that may take up to 60 days. The rules will then be published again and will be effective 30 days later. According to the FAA, and as reported by the U.S. Government Accountability Office, the goal for a final rule will be approximately 18 months after the NPRM are issued. At this point, the earliest we will have final rules is in the summer of 2016, perhaps not until early 2017.
WHAT CAN I DO?
The NPRM itself will tell individuals how they can submit comments to the FAA. One likely possibility for comment submission will be the website, www.regulations.gov. You should also contact your elected representatives directly and tell them what you think of the proposed rules (NPRM). To find your Congressperson, enter your zip code at house.gov/representatives/find. To find your senator, select your state from the drop down at senate.gov/general/contact_information/senators.
SOME TAKEAWAYS
While it may not appear so at times, your voice matters. The Administrative Procedure Act requires the FAA to consider each comment that comes through. But make it as easy as you can for whoever is reading your comment to agree with your argument. That means proofreading it, perhaps providing supporting documents and research, and asking a friend or significant other to read it. If they don’t easily get what you want to say, give it a re-write until they do. In addition, don’t forget the impact a personal visit with your U.S. Senator or Congressperson can have to let them know what you think about the proposed rules. And finally, you may wish to consider hiring a law firm like mine with federal rulemaking experience to help draft those comments to the NPRM. You can bet the organizations that don’t have your interests in mind will be hiring one in Washington D.C. to do the same for them.
By Jeffrey Antonelli
None of this article constitutes legal advice. Please consult an attorney if you have legal questions. Antonelli Law’s associate attorney Amelia Niemi assisted Jeffrey Antonelli with this article.
